Daphne Bramham: Law society’s decision a stark reminder of the limits of human rights

Trinity Western University to open law school despite its anti-gay covenant

Trinity Western University has been given the green light by the Law Society of B.C. to open a law school.

Photograph by: wayne leidenfrost Wayne Leidenfrost
, Vancouver Sun

The constitutionally guaranteed rights and freedoms that Canadians believe they enjoy are neither absolute nor are they universal.

There was a stark and sad reminder of that Friday when the Law Society of B.C.’s directors voted overwhelmingly in favour of approving a law school at Langley’s Trinity Western University.

They gave their approval despite many of them using words like “abhorrent,” “discriminatory,” “hateful,” “anachronistic” and “fundamentally wrong” to describe the evangelical Christian university’s anti-gay covenant that all students and staff must sign and help enforce.

By a margin of 20-6, the benchers (as the directors are called) stuck with the status quo. They were unwilling to reject the school, which almost certainly would have resulted in a re-think of an earlier Supreme Court of Canada decision. That decision in 2001 upheld the religious freedom of TWU to have a such covenant, but even Canada’s top jurists agree that it makes the university an uncomfortable place for anyone who isn’t heterosexual.

What effect, if any, the B.C. decision will have on three other law societies that are debating TWU’s accreditation remains to be seen. Following its debate earlier this week, the Law Society of Upper Canada seems poised to reject it later this month, while the law societies in Nova Scotia and New Brunswick will both vote on TWU’s law school before the end of June.

Part of the legal reasoning behind the B.C. decision is that unlike public institutions, private schools such as Trinity Western are beyond the reach of the Charter of Rights and Freedoms.

David Crossin, a Vancouver criminal lawyer and law society bencher, reflected the conflicted nature of those who voted to approve the school.

He began by wondering why TWU “inexplicably chose a path that is effectively discriminatory and certainly hurtful and to many, highly hypocritical ... It is almost an exercise in self-marginalization.”

But he said to “punish” TWU for its value system would “so undermine freedom of religion that it would be a dangerous over-extension of power.”

Pinder Cheema, a Victoria lawyer and society bencher, agreed to allow the law school even though as a South Asian woman, she noted that not long ago both her gender and being “a brown person” would have disqualified her from every law school in Canada. And, as a Sikh, she said, “It is not at all certain that I would be accepted at TWU.”

Yet as “abhorrent and objectionable” as TWU’s covenant is, Cheema said the law society was obligated to uphold the rule of law.

But Joseph Arvay, who has been involved in several precedent-setting human rights’ cases, reached the opposite conclusion.

He urged his colleagues who called the covenant “repugnant, hurtful and heartless” to be leaders and challenge any law that might allow it.

“I don’t recognize that law is so separated from justice,” said Arvay, who noted that having the covenant is akin to putting up a sign at the campus entrance that says lesbians, gays, bisexual, transsexual or transgender people are not welcome.

He and others argued that much has changed since the 2001 Supreme Court decision (including the legalization of same-sex marriages) and that the law society would serve the public interest by being a catalyst and putting the issue back before the Supreme Court.

But rather than choosing an activist path, the benchers chose an undeniably cheaper route in avoiding a court challenge.

In true Canadian fashion, they opted for compromise and acceptance even as they expressed hope that over time TWU will change. One even suggested that the university strike a committee to rewrite the offensive covenant, while others opted to scold TWU for making it all so difficult for them.

Speaking directly to the three TWU representatives at the meeting, one bencher noted that just because the university has the legal right to have a “discriminatory” covenant “doesn’t mean you should do it.”

This is not to suggest that the benchers’ decision was an easy one or necessarily a popular one.

It was striking that in the room where journalists and the public had been invited to watch the live-streamed debate, security people hired by the law society far outnumbered the viewers.

But there proved to be no need for concern that passionate interlopers might disrupt the calm, respectful, reasoned and rational debate.

It was a reminder that there is something great about living in a country where this kind of thoughtful debate on a deeply divisive issue can occur in public without incident.

Still, there is also something deeply disappointing about a country where so many intelligent and articulate people clearly see and abhor discrimination yet are unwilling to do anything about it.

This is more pressing now as financial support for public institutions — from schools to broadcasting — is being eroded and private entities are increasingly required to take on those essential roles. Because as those public institutions erode, so too do the protections for and guarantees of fundamental human rights.

One might reasonably ask who better than the Law Society of B.C. to have argued for an updated balancing of rights after having gone through an exhaustive, months’ long process?

But, clearly the benchers want no part of it and have left that role to others.

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